1. CRICOS No.00213J BUILDING THE INFRASTRUCTURE FOR DATA ACCESS AND REUSE IN COLLABORATIVE RESEARCH: An Analysis of the Legal Context (June 2007) A joint report of the Open Access to Knowledge (OAK) Law Project and the Legal Framework for e- Research Project, both hosted by QUT Funded by the Australian Government Department of Education Science and Training (DEST) Systemic Infrastructure Initiative (SII) funded projects and part of the Commonwealth Governments Backing Australias Ability – An Innovation Action Plan for the Future

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3. BUILDING THE INFRASTRUCTURE FOR DATA ACCESS AND REUSE IN COLLABORATIVE RESEARCH: An Analysis of the Legal Context Examines the legal framework in which research data is generated, managed, disseminated, used Provides an overview of the areas of law relevant to research data: copyright, contract, confidentiality, privacy, public records, freedom of information etc Explains current practices and attitudes to data sharing; considers open access policies developed at national and international levels Provides practical guidance and recommendations on the development of appropriate legal frameworks for data management http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

4. CRICOS No.00213J Chapter 1 – The Data Landscape Todays research community must assume responsibility for building a robust data and information infrastructure for the future. [ICSU, Scientific Data and Information: A Report of the CSPR Assessment Panel, December 2004] December 2006 – Australian Research Council (ARC) and National Health and Medical Research Council (NHMRC) announced open access guidelines for data from funded research projects, effective 2008 Supported by the Australian Government Productivity Commission in Public Funding for Science and Innovation (2007) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

5. CRICOS No.00213J Chapter 1 – The Data Landscape Prime Ministers Science, Engineering and Innovation Council (PMSEIC), Working Group on Data for Science, From Data to Wisdom: Pathways for Successful Data Management for Australian Science (December 2006) Australian Government National Collaborative Research Infrastructure Strategy (NCRIS), Strategic Roadmap (2006) Australian Partnership for Sustainable Repositories (APSR), Sustainable Paths for Data-Intensive Research Communities at the University of Melbourne (August 2006),NHMRC/AVCC, Joint Statement and Guidelines on Research Practice – Australian Code for Responsible Conduct of Research (2006) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

6. CRICOS No.00213J Chapter 2 – Key Concepts Key terms and concepts: –data, dataset, database data includes raw information, text, software, numbers, graphs, pictures, metadata and audio and video recordings –ownership, control, access and use Different parties may claim an interest in relation to data: –Researchers who generate or collect data, research funders, database managers, custodians and users Several areas of law impact on issues of data ownership, control, access and use: –copyright, patent, contract, confidential information and privacy http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

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8. Chapter 3 – The Regulatory Context On the one hand information wants to be expensive, because its so valuable…On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. [Stewart Brand, Hackers Conference in 1984, as quoted by John Perry Barlow in The Economy of Ideas: A framework for patents and copyrights in the Digital Age (Everything you know about intellectual property is wrong) (1994), Wired, Issue 2.03] http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

9. CRICOS No.00213J Chapter 3 – The Regulatory Context Examines the regulatory context in which data is generated, managed and used Particular focus on legislative and administrative provisions applying to data generated or held by public sector or publicly funded entities Health information and personally identifying information – legal frameworks for information privacy –Competing considerations: advancement of medical research (aided by data sharing and data linking practices) vs. protection of patient anonymity and privacy Privacy Act 1988 (Cth) and State legislation Australian Law Reform Commission (ALRC) Issues Paper 31: Review of Privacy (2006) ALRC Issues Paper 26: Protection of Human Genetic Information (2001) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

10. CRICOS No.00213J Chapter 3 – The Regulatory Context Government Data and Information –Public Records and Archives legislation –Freedom of Information Acts –Electronic Transactions Acts –Administrative Arrangements and Information Standards Cultural protocols http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

11. CRICOS No.00213J Chapter 4 – Current Practices and Attitudes to Data Sharing Surveys and describes examples of web-accessible United States, European and Australian databases with developed legal arrangements for providing access to and sharing of research data: –analyses the various models of data ownership, control, access and use observed in the sample –looks at general frameworks as well as subject-specific databases, especially collections of medical and genetic research data Considers the relevance of survey evidence of researchers attitudes on accessibility and sharing of data to the development of systems for technical and legal management of research data http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

12. CRICOS No.00213J Chapter 4 – Current Practices and Attitudes to Data Sharing Key databases analysed include: United States – National Institutes of Health (NIH) databases, including GenBank, Genetic Association Information Network (GAIN) and National Human Genome Research Institute (NHGRI) National Centre for Biotechnology Information (NCBI) databases, including Database of Genotype and Phenotype (dbGaP) Earth System Grid Europe – Mars Climate Database Capture Wales http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

13. CRICOS No.00213J Chapter 4 – Current Practices and Attitudes to Data Sharing Australia – Marine Themes Household Income and Labour Dynamics in Australia Survey (HILDA) Pacific and Regional Archive for Digital Sources in Endangered Cultures (PARADISEC) Australian Social Science Data Archive (ASSDA) Western Australian Genetic Epidemiology Resource (WAGER) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

14. CRICOS No.00213J Chapter 4 – Current Practices and Attitudes to Data Sharing Surveys of researchers attitudes - APSR Australian eResearch Sustainability Survey NCRIS Platforms for Collaboration Data Management Survey QUT e-Research Survey (report forthcoming) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

15. CRICOS No.00213J Chapter 5 - Copyright Overview of basic principles of copyright law in relation to data/datasets/databases: –copyright in compilations (literary works heading) –In Australia: Desktop Marketing System Pty Ltd v Telstra Corporation Pty Ltd (2002, Full Federal Court) –cf United States position: Feist Publications Inc v Rural Telephone Service Co Inc (1991) –European Union Database Directive Extension of copyright protection for digital materials available online: –Electronic communication right (transmit/make available) –Protection for Digital Rights Management (DRM) technologies and Electronic Rights Management Information (ERMI) Copyright licensing, including: –Open content licences – Creative Commons, Science Commons –Statutory licences – position of government as owner and user of copyright (Crown copyright) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

16. CRICOS No.00213J Chapter 6 – Confidential Information Explains when data or information which is confidential or secret can be legally protected Doctrine of confidentiality (action for breach of confidence) can be used to control and limit access to data that has not been publicly disseminated and is not public knowledge Considers some special cases: –information acquired during the course of employment (trade secrets) –information held by government Use of contracts to maintain secrecy (Confidentiality agreements) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

17. CRICOS No.00213J Chapter 7 - Contract Considers various contractual arrangements relevant to the protection and sharing of data and information Use of contracts: –to protect confidentiality or commercial interests –assign copyright –grant copyright licences –control access to and use of data –impose restrictions on re-use of data for specific purposes or projects (downstream uses) provides diagrammatic examples to illustrate contractual arrangements http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

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20. Chapter 8 – Data Sharing Frameworks Provides an overview of open access policies and principles specifically relating to research data, developed at national and international levels and by private research organisations International: –Bermuda Principles –Berlin Declaration on Open Access to Knowledge in Science and the Humanities –Organisation for Economic Co-operation and Development (OECD) Declaration on Access to Research Data from Public Funding http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

21. CRICOS No.00213J Chapter 8 – Data Sharing Frameworks National - governments and public sector research funding bodies: –National Institutes of Health (NIH) Data Sharing Policy; and –Australian Research Council (ARC) and National Health and Medical Research Council (NHMRC) funding policies. Private sector research organisations: –Wellcome Trust Position Statement (UK) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

22. CRICOS No.00213J Chapter 9 – Data Sharing Infrastructure The scientific community can and must assert greater control over the management of its own data supplies. [J Reichmann and P Uhlir, A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment (2003) 66 Law and Contemporary Problems 315] Considers steps to take in developing legal frameworks for data management in the Australian research context In developing effective frameworks for the management of research data, the following steps are proposed: –formulate a Data Access Policy and Principles; –identify the specific kinds of data to be made available for access and use; –ascertain the conditions of access and use; and –adopt mechanisms for practical data management, such as a Data Management Plan (DMP) and a Data Management Toolkit (DMT) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

23. CRICOS No.00213J Chapter 9 – Data Sharing Infrastructure Data Management Plan (DMP) – –how data is managed in accordance with relevant legal controls –how data is preserved and maintained and how this is funded –who is responsible for the management of data and the database Data Management Toolkit (DMT) – –guides researchers in the allocation and handling of data in accordance with the DMP –how to deposit data into the database –how to manage data in compliance with legal requirements http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

24. CRICOS No.00213J Chapter 10 – Conclusions and Recommendations We are going to be deluged with data in almost every field. [Tony Hey in Richard Poynder (2006) A Conversation with Microsofts Tony Hey] Proposes steps to be taken on the development of data access policies, principles and practices for guidance of researchers Proposal 1: Analysis of Data Access and Sharing Practices further analysis of databases such as those described in Chapter 4 to ascertain approaches and policies to data sharing and licensing terms used develop standard models and templates for research data frameworks addressing intellectual property rights and other legal arrangements Proposal 2: Analysis of Open Access Policies and Principles conduct further comparative examination of policies, principles and guidelines on open access to research data, as described in Chapter 8 examine how open access policies and principles are reflected in data access and sharing practices (Chapter 8 and Chapter 4) http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

25. CRICOS No.00213J Chapter 10 – Conclusions and Recommendations Proposal 3: Develop Data Access Policies and Principles and Model Data Management Plans, Toolkits and Templates Policies and principles to provide clear statements on open access to research data Data Management Plans (DMP) to assist in management, preservation and maintenance of data in accordance with relevant legal requirements Data Management Toolkit (DMT) to provide practical guidance to researchers on how to collect, manage and deposit data Template Access Agreements and Repository Deposit Licences consistent with the DMP and DMT http://www.oaklaw.qut.edu.au/node/33 http://www.e-research.law.qut.edu.au/node/14

26. CRICOS No.00213J e-Research Survey 93% stating that data ownership or access will be very or somewhat important with the increase of e-Research Perceptions regarding the future importance of various contracting issues associated with the increase of e-Research (n=176) 7% 3% 6% 2% 32% 28% 13% 11% 6% 7% 5% 7% 40% 38% 46% 44% 50% 48% 42% 38% 21% 27% 37% 39% 42% 43% 51% 53% 0%10%20%30%40%50%60%70%80%90%100% COMPETITION CROSS-BORDER DISPUTES LIABILITY PRIVACY LAWS EASE OF ENTERING FORMAL AGREEMENTS FLEXIBILITY OF FORMAL AGREEMENTS DATA OWNERSHIP OR ACCESS INTELLECTUAL PROPERTY Not at all importantNot very importantSomewhat importantVery important

27. CRICOS No.00213J e-Research Survey Basis of availability of databases for access and use by other researchers (n=95)

28. CRICOS No.00213J e-Research Survey Many participants (n = 95; 53.7%) said that their organisation does not have a policy setting out the basis on which research data should be deposited into databases for access by other researchers

29. CRICOS No.00213J e-Research Survey Comment from participant (Policies for depositing data): At the University level this policy is highly generalised which means that researchers and research projects have to set policy that is appropriate to the work they are doing. In our case our focus is on public domain knowledge (the better use thereof) and so our policy involves open access as a fundamental requirement (this does not mean that there may not be data that has to be restricted - but in all projects there must always be public knowledge and it is this knowledge/information that is used to enable interconnectivity with other databases or information systems. (Researcher, University; Arts & Social Sciences)

30. CRICOS No.00213J e-Research Survey Comment from participant (Data Access) I think Australia needs more open access to data sets - we often have to reinvent the wheel because we can't access the data from Jo Bloggs study. However, the IP climate in Australia makes it difficult to take the first step and make this data open to the world. Basically, you don't get any credit for data, only publications and reports. Hence, it's not worth your while giving out data for someone else to use and get credit for. Having a legal way of maintaining IP that is supported by the Federal government in the distribution of funding (i.e: RQF) would be great. (Researcher, University; Arts & Social Sciences)

31. CRICOS No.00213J e-Research Survey General comment from participant: The problem with this issue [e-Research] is often not the desire to make data available, but the cost and difficulty in actually implementing the systems, particularly when building the systems requires people with an understanding not only of very complex technical issues for managing the data, but also the IP consequences of their actions and the possibility of legal risk (through unforseen uses) that may accrue from release of the data….

32. CRICOS No.00213J e-Research Survey How-to guide Approx 90% of the sample said it would assist them to have access to a plain English how-to guide explaining the legal restrictions associated with databases Of those who said a how-to guide would not assist, reasons included: –…because they are already provided by the databases –most databases I use have no restrictions –it is likely to be a large document –I don't have time to read yet more documentation written in general terms that wouldn't tell me what I needed to know about my specific situation –it is the responsibility of the research office

33. CRICOS No.00213J e-Research Survey Almost half of the 95 respondents (n = 47; 49%) had reservations about people outside their projects or organisation having access to their data To explore reasons for these reservations, participants were asked to rate their agreement (on a scale of strongly disagree through to strongly agree) with 9 statements (see over)

34. CRICOS No.00213J e-Research Survey Reasons for reservations about access to data